DOJ Challenges Airline Merger, Tennessee Joins Suit

The U.S. Justice Department and attorneys general from Tennessee and five other states have sued to stop the proposed merger between US Airways and Americans Airlines, WRCB-TV reports. The suit, filed in federal court today, alleges that the merger would result in "higher airfares, higher fees and fewer choices." Washington, D.C., also joined the suit, the Nashville Business Journal reports. In announcing the move, Attorney General Robert Cooper said, "Studies show that Tennessee's four major airports … will experience fewer flights to certain destinations and travelers will pay more for remaining flights” if the merger is completed. Read more in this release from the AG's office.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
08 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.


TN Supreme Court

JIM HAMMOND, SHERIFF OF HAMILTON COUNTY ET AL. v. CHRIS HARVEY ET AL.

Court: TN Supreme Court

Attorneys:

R. Dee Hobbs, Chattanooga, Tennessee, for the appellants, Jim Hammond, Sheriff of Hamilton County, and Hamilton County, Tennessee.

Thomas Clifton Greenholtz and Harold Lebron North, Jr., Chattanooga, Tennessee, for the appellees, Chris Harvey, Ricky Jones, Mark King, Mark Kimsey, Mark Williams, and Jody Mays.

Judge: LEE

The issue presented in this case is whether a county civil service board was authorized to order the county sheriff to equalize the pay of all sergeants employed within the sheriff’s office. A group of sergeants, who were paid varying amounts within an established pay range, filed a grievance regarding pay disparities among sergeants in the sheriff’s office. When the sheriff rejected the grievance, the sergeants filed a grievance with the sheriff’s department civil service board. The board upheld the grievance and ordered the sheriff to equalize the pay of all sergeants in the sheriff’s office. The sheriff and the county appealed to the Hamilton County Chancery Court, which held that the board did not have the authority to order pay equalization and declared the board’s ruling null and void. The Court of Appeals ruled that the board exceeded its statutory authority, but remanded the case to the board so it could direct the sheriff to take the necessary steps to eliminate the pay disparity. Pursuant to Tenn. Code Ann. § 8-8-409(3) (2011), we hold that the board had the authority to hear the grievance, but in the absence of proof that the sheriff violated state law or the sheriff’s department civil service manual, the board lacked the power to order the remedy of salary equalization. There was no proof that the sheriff violated state law, and the civil service manual specifically gave the sheriff the authority to make individual pay determinations. The judgment of the Court of Appeals is reversed, and the case is remanded to the Chancery Court for further proceedings as are necessary.


TN Court of Appeals

AOL, INC. (SUCCESSOR TO AMERICA ONLINE, INC.), ON ITS OWN BEHALF AND AS ASSIGNEE OF SPRINT COMMUNICATIONS COMPANY, L. P., AND SPRINT COMMUNICATIONS COMPANY, L. P. v. RICHARD H. ROBERTS, IN HIS CAPACITY AS COMMISSIONER OF REVENUE FOR THE STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Patricia Head Moskal and Joseph W. Gibbs, Nashville, Tennessee; and Martin I. Eisenstein, Lewiston, Maine, for the Appellants, AOL, Inc. (successor to America Online, Inc.), on its own behalf and as assignee of Sprint Communications Company, L. P., and Sprint Communications Company, L. P.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Jonathan N. Wike, Senior Counsel, for the Appellee, Richard H. Roberts, in his capacity as Commissioner of Revenue for the State of Tennessee.

Judge: DINKINS

Taxpayers appeal from the trial court’s grant of summary judgment in favor of the Commissioner and dismissal of the taxpayers’ claims for refund of sales taxes paid to the State of Tennessee. Holding that the service at issue was not excluded from the definition of taxable telecommunications as a private line service or as an enhanced service, we affirm the judgment of the trial court.


WILLIAM H. THOMAS, JR. v. TENNESSEE DEPARTMENT OF TRANSPORTATION

Court: TN Court of Appeals

Attorneys:

William H. Thomas, Jr., Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Larry M. Teague, Deputy Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Transportation.

Judge: CLEMENT

This appeal arises from a petition for judicial review of the decision of the Tennessee Department of Transportation to deny the petitioner’s application for four billboard construction permits on I-240 in Memphis, Shelby County, Tennessee. The dispositive issues concern the zoning classifications of the proposed billboard locations. The Department of Transportation denied the permits based upon the finding that none of the proposed billboard locations met the zoning requirements in Tennessee Code Annotated § 54-21-103(4) or Tenn. Comp. R. & Regs. 1680-2-3-.03(1)(a)1, or the definitions for “Zoned Commercial” or “Zoned Industrial” in Tenn. Comp. R. & Regs. 1680-2-3-.02(29). The trial court affirmed the Department’s denial of the permits, finding subsection (d) of 23 C.F.R. § 750.708, which states, “A zone in which limited commercial or industrial activities are permitted as an incident to other primary land uses is not considered to be a commercial or industrial zone for outdoor advertising control purposes” was controlling. The trial court also found the area was comprehensively zoned for residential, agricultural and flood plain uses, not commercial or industrial, and that “TDOT acted within its statutory authority in denying the petitioner’s application for permits,” and thus the court dismissed the petition. We affirm the decision to deny the permits based upon federal and state law.


LARRY D. WILLIAMS v. CITY OF BURNS, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the Appellant, Larry D. Williams.

Stephen W. Elliott and Fetlework Balite-Panelo, Nashville, Tennessee, for the Appellee, City of Burns, Tennessee.

Judge: DINKINS

A police officer who was terminated for violating chain of command and insubordination filed suit for retaliatory discharge pursuant to Tenn. Code Ann. § 50-1-304, alleging that he had been terminated for reporting illegal activities of the Police Chief to the Mayor. Following a trial, the court held that the evidence did not establish that the officer had been terminated solely for his refusal to remain silent about the illegal activities. Finding that the reasons given for the officer’s termination were pretextual within the meaning of the applicable statute, we reverse the judgment of the trial court and remand for further proceedings.


JULIA YOUNG, on behalf of the estate of CECIL C. YOUNG v. LISA KENNEDY, M.D. and METHODIST HEALTH SYSTEMS, INC.

Court: TN Court of Appeals

Attorneys:

Amanda K. Strange, Memphis, Tennessee, for the appellant, Julia Young, on behalf of the estate of Cecil C. Young.

Andrea N. Malkin and Tiffany Taylor Bowders, Memphis, Tennessee, for the appellees, Lisa Kennedy, M.D. and Methodist Health Systems, Inc.

Judge: STAFFORD

This case involves the application of the medical malpractice statute of limitations. The trial court granted summary judgment to the defendant doctor, finding that the statute of limitations defense was not waived by her failure to raise it in her first pre-answer motion, that the defense was sufficiently pleaded, and that the undisputed facts in the record supported a finding that the statute of limitations had expired at the time of filing the initial complaint. Affirmed and remanded.


TN Court of Criminal Appeals

YOVONDA S. CHAMBERS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Matthew J. Crigger, Franklin, Tennessee, for the Appellant, Yovonda S. Chambers.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel, Criminal Justice Division; Kim R. Helper, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Yovonda S. Chambers, pled guilty to one count of identity theft and agreed to allow the trial court to determine sentencing. Pursuant to the plea agreement, the State entered a nolle prosequi as to a second count of identity theft. After a sentencing hearing, the trial court sentenced the Petitioner to four years to be served on intensive probation. The Petitioner timely filed a petition seeking post-conviction relief on the basis of ineffective assistance of counsel, which the post-conviction court denied after a hearing. The Petitioner appeals the post-conviction court’s denial, claiming that her attorney failed to adequately investigate the case, discuss the case with the Petitioner, and properly prepare for sentencing. After a thorough review of the record, the briefs, and relevant authorities, we affirm the post- conviction court’s judgment.


STATE OF TENNESSEE v. MICHAEL DEWEY ELLINGTON
With Dissenting Opinion

Court: TN Court of Criminal Appeals

Attorneys:

C. Richard Hughes, Jr., District Public Defender, Jeanne L. Wiggins, Assistant District Public Defender, for the appellant, Michael Dewey Ellington.

Robert E. Cooper, Jr., Attorney General and Reporter, Leslie E. Price, Senior Counsel; R. Steven Bebb, District Attorney General, and James H. Stutts, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Michael Dewey Ellington, was convicted of the first degree (premeditated) murder of his girlfriend and sentenced to life in prison. On appeal, the appellant challenges the sufficiency of the evidence and claims that the trial court erred by (1) excluding photographs of the contents of the victim’s purse and (2) admitting a photograph depicting the victim’s wounds at trial. After carefully reviewing the record and the arguments of the parties, we affirm the judgment of the trial court.


RICHARD HERRERA v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Richard Herrera, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Richard Herrera, appeals the Obion County Circuit Court’s summary dismissal of his petition for post-conviction relief from his 2010 convictions for sexual battery and attempted sexual battery and his effective Range I, one-year sentence. The Petitioner contends that the trial court erred by dismissing his petition on the ground that his sentence had expired. Because the trial court erred in dismissing the post-conviction petition on the ground of an expired sentence, we reverse the judgment of the trial court and remand the case for an evidentiary hearing.


STATE OF TENNESSEE v. TERRANCE LEWIS
With Concurring Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Juni Ganguli, Memphis, Tennessee, for the appellant, Terrance Lewis.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Amanda Dwyer and Stephanie Johnson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: BIVINS

Terrance Lewis (“the Defendant”) was convicted by a jury of one count of second degree murder, two counts of attempted second degree murder, and three counts of attempted voluntary manslaughter. Following a sentencing hearing, the trial court imposed an effective sentence of ninety-five years. In this appeal, the Defendant contends that the evidence is not sufficient to support his convictions and that the trial court erred in sentencing him. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. LAM HOANG NGUYEN

Court: TN Court of Criminal Appeals

Attorneys:

Thomas A. Overton, Nashville, Tennessee, for the Defendant-Appellant, Lam Hoang Nguyen.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Pam Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Davidson County Grand Jury convicted the Defendant-Appellant, Lam Hoang Nguyen, of sexual battery, for which he was sentenced to 18 months probation after service of 10 days in confinement. In this appeal, Nguyen argues (1) the evidence was insufficient to sustain his conviction for sexual battery; and (2) he was denied a fair and impartial trial due to jury bias. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. DON MAURICE TAYLOR

Court: TN Court of Criminal Appeals

Attorneys:

C. Mark Donahoe, Jackson, Tennessee, for the appellant, Don Maurice Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and Garry G. Brown, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Don Maurice Taylor, pled guilty in the Gibson County Circuit Court to one count of second degree murder and two counts of aggravated assault. After a sentencing hearing, the trial court sentenced him to concurrent sentences of twenty-five years for the murder conviction, a Class A felony, and six years for each aggravated robbery conviction, a Class C felony. On appeal, the Petitioner contends that his effective twenty-five-year sentence is excessive because the trial court misapplied enhancement factors and failed to apply certain mitigating factors. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. GREGORY D. VALENTINE

Court: TN Court of Criminal Appeals

Attorneys:

Lawren B. Lassiter, Gallatin, Tennessee, for the Defendant-Appellant, Gregory D. Valentine.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Lawrence R. Whitley, District Attorney General; and Thomas B. Dean, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Pursuant to a plea agreement, the Defendant-Appellant, Gregory D. Valentine, entered best interest pleas to twenty counts of identity theft, six counts of criminal simulation, one count of forgery, one count of theft of property valued at $10,000 or more but less than $60,000, one count of money laundering, and one count of filing a false police report in exchange for an effective sentence of twelve years and eight months, with service of thirty-two months at seventy-five percent in confinement at the county jail followed by service of ten years at thirty percent on state probation. Shortly after entry of these judgments, V alentine filed three pro se motions to set aside his pleas, which the trial court denied without a hearing. Valentine appealed, and this court reversed the trial court and remanded the case for an evidentiary hearing. See State v. Gregory Darnell Valentine, No. M2010-02356-CCA-R3- CD, 2012 WL 3263117 (Tenn. Crim. App. Aug. 10, 2012). On remand, the trial court conducted an evidentiary hearing and again denied the motions. On appeal, V alentine argues that the trial court erred in denying his motions to set aside his best interest pleas. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. STEPHEN BRIAN WILCOX

Court: TN Court of Criminal Appeals

Attorneys:

Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Brian Stephen Wilcox.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Stephen Brian Wilcox (“the Defendant”) was convicted by a jury of attempted aggravated sexual battery. Following a sentencing hearing, the trial court sentenced the Defendant to six years’ incarceration. In this appeal, the Defendant contends that the evidence is not sufficient to support his conviction and that the trial court erred in sentencing him. The Defendant also argues that the trial court erred in excluding testimony related to alleged sexual accusations made by the victim against others, in permitting the victim to be brought into the courtroom to be identified, and in permitting the State to continue its direct examination of the victim’s mother after it passed the witness. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.


Tennessee Lawyers Elected to ABA Offices

Four Tennessee lawyers were elected to leadership positions in the ABA and took office during the annual meeting this past week. Former TBA President and Memphis lawyer Danny Van Horn takes over as chair of the Standing Committee on Membership. Former Nashville Bar Association President Jonathan Cole was elected secretary of the National Conference of Bar Presidents, a move that puts him in line to lead the group in several years. He is only the third Tennessean to hold that position. Knoxville lawyer Carole Worthington was elected to an at-large seat in the ABA House of Delegates. Finally, Tennessee Attorney General Robert Cooper was named as a delegate to the ABA House, representing the National Association of Attorneys General.


YLD Brings Home Awards from ABA Meeting

The TBA YLD was recognized for a number of programs and activities at the ABA YLD Annual Meeting this past weekend in San Francisco. The YLD was awarded first place in the Minority Project category for its new invited guest program, which seeks to include the broadest range of perspectives and experiences on its governing board by inviting representatives from all specialty and minority bars in the state to attend meetings and participate in decision-making. It also received special recognition for its annual Mock Trial Competition and its overall member service and public service initiatives. Read more in a message from YLD President David McDowell.


Justice Kennedy, ABA House Address Human Trafficking

U.S. Supreme Court Justice Anthony M. Kennedy spoke out against human trafficking on Saturday after attendees at the ABA Annual Meeting had heard from Minh Dang, a victim of human slavery. In his keynote address, Kennedy recounted statistics indicating there are 27 million people being held as slaves around the world, with at least 100,000 of them in the United States. "Let's stop human trafficking," he said. "I urge you to continue to bring this to the world's attention." On Monday, the ABA House of Delegates overwhelmingly approved model legislation for states to use in adopting new prohibitions against human trafficking. In related news, the Equal Opportunity Employment Commission announced it has begun using civil actions -- which require a lesser burden of proof than criminal actions -- against those who traffic or abuse employees, while a federal judge struck down a New Jersey law aimed at fighting the sexual trafficking of minors. The ABA Journal has more on these developments.


New York Lawyer Takes Office as ABA President

Accepting the presidential gavel today at the ABA Annual Meeting, New York lawyer James Silkenat laid out a series of initiatives he intends to focus on during his year in office. These include a renewed effort to improve access to justice, creating employment opportunities for new lawyers and addressing the public policy issues of gun violence, immigration and election law reform. The ABA Journal reports.


O'Connor: Civics Education Answer to Politicization of Courts

Former U.S. Supreme Court Justice Sandra Day O'Connor, speaking Monday to the National Conference of State Legislatures, urged lawmakers to help improve civics education in their states' schools. The former justice, who spearheaded the iCivics program, says the increasing politicization of the country's courts is a problem and that better civics education could help reverse that trend. WDEF News 12 has the story.


Judge: NYPD Stop-and-Frisk is Unconstitutional

A federal judge ordered an independent monitor to oversee reforms to the New York City Police Department's stop-and-frisk practice after ruling the policy violated the U.S. Constitution. The ruling, released Monday, found that “the city acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks." In addition, the judge wrote, “the city adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause." The Wall Street Journal has more.


LAET Annual Campaign in Full Swing

Legal Aid of East Tennessee (LAET) is in the midst of its annual fundraising effort and this year’s Campaign for Justice includes a new opportunity for firms to support pro bono. The LAET Leadership Cabinet is open to all law firms whose annual combined firm and individual attorney giving averages at least $250 per firm lawyer. Leadership Cabinet member firms will be recognized in the agency’s annual report, newsletters and other publications. Class of 2013 members also will be recognized as charter members if they maintain Leadership Cabinet membership in successive years. Read more about the program in this article from the Knoxville Bar Association's magazine. For more information contact LAET Resource Development Director Bill Evans at bevans@laet.org or (865) 521-4948.


Family Still Seeking Answers Year After Teen’s Death

The family of Brentwood teen Kendall Oates is still seeking answers about their son a year after he died in Department of Children’s Services (DCS) custody, The Tennessean reports. DCS records show Oates, who suffered from seizures, may have lain sick or dead for hours, undetected by a security guard who was supposed to check on him every 15 minutes. In addition, DCS was required to administer anti-seizure medication, but the autopsy found no trace of the medicine in his body. Finally, Oates was not wearing his lifesaving anti-seizure wristband, which he was required to wear at all times. Oates’ parents have tried to get their son’s records to no avail. And now that a year has passed, a wrongful death suit is not an option. Meanwhile, DCS closed its investigation, finding that the teenager died of natural causes.


Minority Law Student Reception to Offer New Buddy Program

The Knoxville Bar Association (KBA), the University of Tennessee College of Law and the Lincoln Memorial University Duncan School of Law invite area lawyers and law students to their annual Minority Law Student Reception. The event will take place Sept. 24 from 5:30 to 7 p.m. at The Southern Depot, 318 W. Depot Ave. Curtis L. Collier, U.S. District Judge Eastern District of Tennessee, will be the guest speaker. The KBA also announced a “Buddy Match Program” to pair practicing lawyers with minority law students who plan to attend. To participate in the Buddy Program RSVP to (865) 522-6522 by Sept. 15. Others should respond by Sept. 19.


 
 

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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